COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-03-228-CR*
DELBERT
WAYNE TAYLOR APPELLANT
V.
THE
STATE OF TEXAS STATE
------------
FROM
THE 362ND DISTRICT COURT OF DENTON COUNTY
MEMORANDUM OPINION1
I. Introduction
Appellant
Delbert Wayne Taylor appeals his conviction for burglary of a habitation.
A jury found Taylor guilty and assessed his punishment at seventeen years’
confinement. In four points, Taylor challenges two jury instructions and
the use of a prior conviction and an unadjudicated extraneous offense during the
punishment phase. We will affirm.
II. Factual
Background
Eyewitness
testimony at trial placed Taylor at the scene of the crime, carrying a
television set out of the complainants’ home. The eyewitness also
testified that a female with long, black hair was sitting in a gray, four-door
Ford waiting for Taylor.
A
pawnshop employee testified that on the date of the burglary in question he took
“a pawn” from Kristina Holland, matching the items stolen from the
complainants. He testified that someone helped Holland carry in the items
and identified that person as Taylor by comparing pictures to the videotape
showing the pawn activity. In the months following the burglary, an
officer located the car, which was described by the eyewitness, at Taylor’s
mother’s house.
Taylor
testified that on the date in question he had loaned his Ford Escort to “Chris
and Angie,” who were occupants at the motel where he was living. He
stated that they came back with the car later that afternoon and that Chris told
him that he wanted someone with an ID to go to a pawn shop. He said that
he took his girlfriend Kristina Holland to the pawn shop, as well as a
television and a VCR. He admitted that he helped Holland pawn the items, but he
stated that he had no idea where the items came from and that he was suspicious
of them.
The
jury charge at the guilt-innocence stage included an instruction on law of
parties. After deliberating, the jury found Taylor guilty of burglary of a
habitation. After hearing evidence during the punishment phase, the jury
assessed Taylor’s punishment at seventeen years’ confinement. This
appeal followed.
III. Standard
of Review
Appellate
review of error in a jury charge involves a two-step process. Abdnor v.
State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994). Initially, we must
determine whether error occurred. Id. at 731-32. In determining if
jury charge error exists, we view the charge as a whole, rather than focusing
only on isolated statements or parts of the charge standing alone. Fowler v.
State, 126 S.W.3d 307, 309 (Tex. App.—Beaumont 2004, no pet.) (citing Marvis
v. State, 36 S.W.3d 878, 880 (Tex. Crim. App. 2001)). If charge error
occurred, we must then evaluate whether sufficient harm resulted from the error
to require reversal. Abdnor, 871 S.W.2d at 731-32.
IV. Court’s
Charge on Law of Parties
In
his second point, Taylor argues that the trial court violated his right to a
fair jury trial under the Fifth, Sixth, and Fourteenth Amendments to the United
States Constitution and under article I, section 10 of the Texas Constitution by
incorrectly instructing the jury on the law of parties. Specifically,
Taylor argues that the charge’s application paragraph allowed the jury to
convict him of burglary of a habitation without the necessity of finding that
another responsible party actually committed the offense.
In
Texas, “[a] person is criminally responsible as a party to an offense if the
offense is committed by his own conduct, by the conduct of another for which he
is criminally responsible, or by both.” Tex. Penal Code Ann. § 7.01(a) (Vernon
2003). Under the law of parties, the State may enlarge a person’s
criminal responsibility to acts in which he may not be the primary actor if such
person, acting with intent to promote or assist the commission of the offense,
solicits, encourages, directs, aids, or attempts to aid the other person to
commit the offense. Id. § 7.02(a)(1)-(2).
Here,
the application paragraph instructed the jury:
Now if you find from the evidence beyond a reasonable doubt that the defendant,
DELBERT WAYNE TAYLOR, did, in Denton County, Texas, on or about the 11th day of
January, 2002, then and there intentionally or knowingly enter a habitation,
[without] the effective consent of Mark Courchesne, the owner thereof, with
intent to commit theft or did attempt to commit theft, or commit theft, or if
you believe from the evidence beyond a reasonable doubt that the defendant,
DELBERT WAYNE TAYLOR, on or about the 11th day of January, 2002, either by his
own conduct, or by acting with intent to promote or assist the commission of the
offense of BURGLARY OF A HABITATION, as charged in the indictment, he solicited,
encouraged, directed, aided or attempted to aid, KRISTINA HOLLAND, you will find
the defendant guilty of burglary of a habitation, as charged in the indictment.
Immediately
preceding the application portion of the charge, the jury was instructed in the
abstract portion that
[a] person is criminally responsible as a party to an offense if the offense is
committed by his own conduct, or by the conduct of another for which he is
criminally responsible, or both. Each party to an offense may be charged
with the commission of the offense.
Mere
presence alone will not make a person a party to an offense. A person is
criminally responsible for an offense committed by the conduct of another if,
acting with intent to promote or assist the commission of the offense, he
solicits, or encourages or directs or aids or attempts to aid the other person
to commit the offense.
Taylor
did not object to the jury charge at trial.
Taylor
argues that the phrase “to commit the offense (of BURGLARY OF A HABITATION)”
should have been inserted after “KRISTINA HOLLAND” in the application
portion so that the jury would have understood that it could only convict him
for the criminal act of another if the State proved that Kristina Holland
actually committed the burglary.
The
law of parties instructions in the charge tracked the language of the relevant
portions of the penal code. See id. §§ 7.01(a), 7.02(a)(2).
The instructions explained when a person is criminally responsible for an
offense committed by another and connected “an offense committed by the
conduct of another” and “the other person to commit the offense” with
“KRISTINA HOLLAND” by naming her in the application portion. Moreover,
the following application paragraph language, requiring the jury to find that
Taylor “either by his own conduct or by acting with intent to promote or
assist in the commission of the offense of BURGLARY OF A HABITATION,”
sufficiently explained that the jury could find Taylor guilty as a party only if
he acted with the intent to promote or assist in the burglary of a habitation.
The very next clause of the same sentence in the application paragraph linked
the burglary of a habitation to Kristina Holland.
Reviewing
the application language in conjunction with the instructions, as we must, we
hold that the trial court did not commit charge error because the jury charge
correctly set forth the law of parties and did not allow the jury to convict
Taylor as a party without finding that another person, Kristina Holland,
committed the offense of burglary. See Marvis, 36 S.W.3d at 880
(holding language in application portion referable to abstract portion so that
charge did not relieve State from proving mens rea element necessary for
a party conviction nor authorize conviction only as a principal). We also
hold that, even if Taylor was entitled to the additional language, he was not
egregiously harmed by the trial court's failure to include it. See
Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g)
(holding that conviction should not be reversed based upon uncontested charge
error absent egregious harm to appellant); see also Marvis, 36 S.W.3d at
880 (explaining entire charge must be reviewed in context along with state of
the evidence and relevant information revealed by record of trial as a whole to
assess harm). We overrule Taylor’s second point.
V. Good Conduct
Time Instruction
In
his first point, Taylor contends that the trial court erred by failing to
include in the punishment charge the instruction mandated by article 37.07,
section 4(c) of the Texas Code of Criminal Procedure dealing with good conduct
time credit. The State responds that the punishment charge contains each
paragraph and each word of the statutory instruction. We agree.
The
record demonstrates that all of the language required by article 37.07, section
4(c) was included in the “Charge on Punishment” in this case. See
Tex. Code Crim. Proc. Ann. art.
37.07 § 4(c) (Vernon Supp. 2004-05). Consequently, the trial court did
not commit charge error with respect to its instruction on good conduct time.
We overrule Taylor’s first point.
VI. Unpreserved
Errors
In
his third and fourth points, Taylor complains that the prosecutor’s
introduction of the facts underlying one of Taylor’s prior convictions2 denied him a fair jury trial and that he was not given
proper notice of an unadjudicated extraneous offense3
used by the State during the punishment phase.
To
preserve a complaint for our review, a party must have presented to the trial
court a timely request, objection, or motion that states the specific grounds
for the desired ruling if they are not apparent from the context of the request,
objection, or motion. Tex. R. App.
P. 33.1(a)(1); Mosley v. State, 983 S.W.2d 249, 265 (Tex. Crim.
App. 1998) (op. on reh’g), cert. denied, 526 U.S. 1070 (1999).
Further, the trial court must have ruled on the request, objection, or motion,
either expressly or implicitly, or the complaining party must have objected to
the trial court’s refusal to rule. Tex. R. App. P. 33.1(a)(2).
Here,
the record reveals that Taylor failed to assert a trial objection raising the
complaints set forth in his third and fourth points. We hold that Taylor
forfeited the errors, if any, by failing to specifically object at trial on the
grounds of error urged on appeal. See id.; Mendez v. State,
138 S.W.3d 334, 342 (Tex. Crim. App. 2004) (holding that failure to comply with Tex. R. App. P. 33.1(a) results in
forfeiture of error); Hartson v. State, 59 S.W.3d 780, 788 (Tex.
App.—Texarkana 2001, no pet.) (holding that where there was no objection to
evidence based on State’s failure to provide notice of its intent to use
extraneous acts, contention of error was not preserved for appellate review).
We overrule Taylor’s third and fourth points.
VII.
Conclusion
Having
overruled each of Taylor’s four points, we affirm the trial court’s
judgment.
SUE
WALKER
JUSTICE
PANEL
F: DAUPHINOT, HOLMAN, and WALKER, JJ.
DAUPHINOT,
J. filed a dissenting opinion.
PUBLISH
DELIVERED:
September 30, 2004
NO. 2-03-228-CR
DELBERT
WAYNE TAYLOR APPELLANT
THE
STATE OF TEXAS STATE
DISSENTING OPINION
“A
person is criminally responsible as a party to an offense if the offense is
committed by his own conduct, by the conduct of another for which he is
criminally responsible, or by both.”1 An
essential element of burglary of a habitation as a party or as a principal is
that the offense was committed either by the other person or by the defendant.
The
trial court is obligated to charge the jury on the “law applicable to the
case.”2 This obligation requires the court
to instruct the jury concerning each and every element of the offense.3 The court’s charge, rather than merely stating
abstract propositions of law and general principles contained in the statutes,
must clearly apply the law to the very facts of the case.4
As our sister court in Dallas has pointed out,
While the law of parties makes an accused criminally responsible, under some
circumstances, for the conduct of another, see section 7.02, it does not alter
the definition of the conduct constituting an offense. On the contrary,
the language in section 7.02, making an accused vicariously responsible for
aiding another “to commit the offense,” still requires conduct
constituting an offense plus an intentional act by the accused to promote or
assist such conduct.5
A jury charge
may not authorize a conviction on less evidence than the law requires.6 Nor can either the indictment or the general
statements of law supply the elements omitted from the application paragraph.7
In
the case now before this court, the application paragraph instructed the jury to
convict if they found Appellant had acted as a principal or that Appellant,
acting with the specific intent to promote or assist a burglary, had solicited,
encouraged, directed, aided, or attempted to aid Kristina Holland. The
jury, however, was not required to find that Kristina Holland or anyone else had
actually committed the burglary in the parties application. For this
reason, I would hold that the trial court erred in submitting the improper
charge to the jury and in allowing conviction on less evidence than required by
law. I, therefore, respectfully dissent from the majority opinion.
LEE
ANN DAUPHINOT
DELIVERED: September 30, 2004
NOTES
* MAJORITY OPINION BY JUSTICE WALKER; DISSENTING OPINION
BY JUSTICE DAUPHINOT
MAJORITY OPINION NOTES
1.
See Tex. R. App. P. 47.4.
2.
The prior conviction dealt with evading arrest/detention with a motor vehicle in
2002.
3.
The unadjudicated extraneous offense involved an unauthorized use of a motor
vehicle on August 24, 2001 in Wichita County, Texas.
DISSENTING OPINION NOTES
1.
Tex. Penal Code Ann. § 7.01(a)
(Vernon 2003).
2.
Tex. Code Crim. Proc. Ann. art. 36.14
(Vernon Supp. 2004-05).
3.
See id.; 43 George E. Dix
& Robert O. Dawson, Criminal Practice and Procedure § 36.11, at
561-62 (Texas Practice 2001).
4.
Newton v. State, 648 S.W.2d 693, 694-95 (Tex. Crim. App. 1983); Williams
v. State, 622 S.W.2d 578, 579 (Tex. Crim. App. [Panel Op.] 1981).
5.
Herring v. State, 633 S.W.2d 905, 908 (Tex. App.—Dallas 1982), aff’d,
659 S.W.2d 391 (Tex. Crim. App. 1983) (emphasis added).
6.
Polk v. State, 749 S.W.2d 813, 815-16 (Tex. Crim. App. 1988).
7.
Hernandez v. State, 10 S.W.3d 812, 819-20 (Tex. App.—Beaumont 2000,
pet. ref’d).